Archive for April, 2012

Nebraska Law Gives Employers Limited Immunity for Job References

Employers in Nebraska can now give job references to former employees with some assurance that they can’t be held liable in court if they give out negative or misinformation.

Nebraska recently became the latest state to enact a law giving employers limited immunity for giving references to current or former employees. Under the bill, which was signed into law on April 10, employers may share the following information:

(i) dates and duration of employment;
(ii) pay rate and wage history on the date of receipt of written consent;
(iii) job description and duties;
(iv) the most recent written performance evaluation prepared prior to the date of the request and provided to the employee during the course of his or her employment;
(v) attendance information;
(vi) results of drug or alcohol tests administered within one year prior to the request;
(vii) threats of violence, harassing acts, or threatening behavior related to the workplace or directed at another employee;
(viii) whether the employee was voluntarily or involuntarily separated from employment and the reasons for the separation; and
(ix) whether the employee is eligible for rehire.

The statute creates a presumption of good faith on the part of the employer, and the presumption may only be overcome by “a showing by a preponderance of the evidence that the information disclosed by the current or former employer was false, and the current or former employer had knowledge of its falsity or acted with malice or reckless disregard for the truth.”

The immunity will apply only if the employee provides written consent to release such information. The written consent remains valid for six months. The consent must be in a standalone document or as a conspicuous part of an employment application. The required language is as follows: “I, (applicant), hereby give consent to any and all prior employers of mine to provide information with regard to my employment with prior employers to (prospective employer).”

The immunity does not apply if the employer is found to have discriminated or retaliated against the employee “because the employee has exercised or is believed to have exercised any federal or state statutory right or undertaken any action encouraged by the public policy of this state.”

Read more about the law’s probable impact.

D.C. Bans Job Discrimination Against Unemployed

It is now illegal in Washington, D.C. to discriminate against persons because they are unemployed.

On March 6, 2012 the D.C. City Council unanimously passed the District of Columbia Unemployed Anti-Discrimination Act of 2012.  Once the opportunity for Congress to override under the Home-Rule Act lapses and it is published in the D.C. Register, the law becomes effective.

Specifically, the law makes it illegal for an employer or employment agency to:

(1) Fail or refuse to consider for employment, or fail or refuse to hire, an individual as an employee because of the individual’s status as unemployed; or

(2) Publish, in print, on the Internet, or in any other medium, an advertisement or announcement for any vacancy in a job for employment that includes:

(A) Any provision stating or indicating that an individual’s status as unemployed disqualifies the individual for the job; or

(B) Any provision stating or indicating that an employment agency will not consider or hire an individual for employment based on that individual’s unemployed status

D.C. employment lawyer Robert Fizpatrick has some interesting observations about the law’s potential for both good and mischief.

Hair Today, Not Gone Tomorrow: EEOC Says Nazarite Employee’s Rights Violated by Taco Bell’s Grooming Policy

Now we know that if the biblical figure Samson wanted to work at a U.S. fast food restaurant, he wouldn’t have to cut off his hair if he objected to it on religious grounds.

The Equal Employment Opportunity Commission would come to his rescue, as the EEOC did this week in the case of an employee at Taco Bell in Fayetteville, N.C., who refused to cut off his hair when ordered to do so by the restaurant’s management.

The employee said that as a practicing Nazarite (which Samson was also), he is religiously obligated his hair long. He hadn’t cut his hair since he was 15.

The EEOC agreed, and ordered the restaurant to pay him $27,00 and provide other relief, including adopting a formal religious accommodation policy and conducting  annual training on Title VII and its prohibition against religious  discrimination and retaliation in the workplace.

This doesn’t mean that the restaurant couldn’t require the employee to put his hair in a net for sanitary or safety reasons. It just can’t make him cut it off.

Read more.

DOL Pulls Proposed New Rule on Children Working on Farms

In a stunning turnaround, the U.S. Department of Labor today withdrew a proposed new rule affecting children under age 16 who work in agricultural vocations.

The regulations haven’t been updated since the 1970s.

The proposed rule would have:

  • strengthened current child labor prohibitions regarding agricultural work with animals  in timber operations, manure pits, storage bins and pesticide handling.
  • prohibited hired farm workers under the age of 16 from employment in the cultivation, harvesting and curing of tobacco.
  • prohibited youth in both agricultural and nonagricultural employment from using electronic devices, including communication devices, while operating power-driven equipment.
  • prohibited hired farm workers under the age of 16 from operating almost all power-driven equipment. A similar prohibition has existed as part of the nonagricultural child labor provisions for more than 50 years. A limited exemption would permit some student-learners to operate certain farm implements and tractors (when equipped with proper rollover protection structures and seat belts) under specified conditions.
  • prevented children under 18 years of age from being employed in the storing, marketing and transporting of farm-product raw materials. Prohibited places of employment would include country grain elevators, grain bins, silos, feed lots, stockyards, livestock exchanges and livestock auctions.

A “parental exemption” would have allowed children of any age who are employed by their parent, or a person standing in the place of a parent, to perform any job on a farm owned or operated by their parent or such person standing in the place of a parent.

“The decision to withdraw this rule – including provisions to define the ‘parental exemption’ – was made in response to thousands of comments expressing concerns about the effect of the proposed rules on small family-owned farms.  To be clear, this regulation will not be pursued for the duration of the Obama administration,” the DOL statement said.

DOL continued: “Instead, the Departments of Labor and Agriculture will work with rural stakeholders – such as the American Farm Bureau Federation, the National Farmers Union, the Future Farmers of America, and 4-H – to develop an educational program to reduce accidents to young workers and promote safer agricultural working practices.”

EEOC Guidance Gives Examples, Best Practices on Arrest Record and Criminal History Use

Employers fearful that their questions on arrest records and criminal convictions might make them vulnerable to liability under Title VII of the 1964 Civil Rights Act can now consult a new guidance document from the Equal Employment Opportunity Commission laying out the parameters for what’s acceptable and what is not.

Better yet, the guidance issued today gives a long list of factors to consider when evaluating criminal history, and offers a dozen examples of best practices in this area.

The Seyfarth Shaw law firm has already done the heavy lifting in explaining and analyzing the guidance, and I commend their blog to you on this important development.


High Court Says Temporary Government Worker Can Be Immune From Suit

A private sector employee hired temporarily to do government work may have qualified immunity from a civil rights lawsuit, the U.S. Supreme Court ruled April 17.

In this case, a city had hired a private attorney to perform temporary work. When a city firefighter sued the attorney along with the fire department and other individuals, the attorney asserted qualified immunity.

The 9th U.S. Circuit Court of Appeals, based in San Francisco, ruled that only full time government employees can have qualified immunity. As a temporary hire, therefore, this attorney could not.

But the U.S. Supreme Court reversed that ruling.

Common law principles of immunity were incorporated into Section 1983 and should not be abrogated absent clear legislative intent, the court explained. Immunity under Section 1983 should therefore not vary depending on whether an individual working for the government does so as a permanent or full-time employee, or on some other basis.

The case is Filarsky v. Delia.

Bad Choreography: EEOC Says College Discriminated Against Dance Instructor

The Equal Employment Opportunity Commission sued last week on behalf of a choreography instructor at Marymount Manhattan College who was turned down for an assistant professorship in dance in favor of a 37-year old.

According to the complaint, the instructor and two other candidates were finalists for the professorship. However, the search committee expanded the search and zeroed in on the younger candidate because it considered her to be “at the right of her life for commitment to a full-time position.”

To the EEOC, that’s code for age discrimination, and so it took the matter to court.

Read more.

Swimming Pools Open to Public Must Be ADA-Compliant

This doesn’t directly have to do with employment, but it may impact your employees who are responsible for Americans With Disabilities Act compliance.

That law, as many of you know, requires equal opportunity and access for persons with disabilities. Benny Kass, a Washington, D.C. area attorney who writes a “Housing Counsel” column for the Washington Post, reminders homeowners associaations and other community pool operators that their facilitis must be ADA-compliant.

That means, as of March 15, all swimming pools have to comply with standards adopted by the U.S. Justice of Department–the agency responsible for enforcing the law’s public accommodation provisions.

In practice, this means that pools with greater than 300 linear feet of wall must hav a second means of access–either an ADA-compliant lieft or a ramp. Smaller pools need only have one means of access, but must stll have the appropriate lift or at least a sloped entry.

The line between what is public and what is private isn’t always a bright one. According to Kass, the difference is whether the facility is open “indiscriminatory to members of the general public.”

He adds that “when an association begins to operate as if it were a public accommodation, then clearly the swimming pool requirements would apply. For example”

  • if the association sells memberships to the swimming pool;
  • if the association allows swim competitions to be held in its pools;
  • if the association is functioning as a hotel (sometimes called a “condotel”–a project that is operated as a hotel with a registration desk, full-service opertions, daily cleaning and a restaurant.)

I highly commend Kass’s article if you want to learn more about the subject.

Indiana Blacklisting Law Not Violated by Suit to Enforce Noncompete

Employers use noncompetition clauses to prevent employees with trade secrets information from working for a competitor. Some states have laws preventing employers from “blacklisting employees,” that is, spreading information about the employee that makes him or her unemployable by another company.

So if an employer sues to enforce a noncompete, is it potentially in violation of its state’s blacklisting law?

In a recent decision the Indiana Supreme Court said no. In that case, Loparex LLC sued unsuccessfully for an injunction to enforce a noncompete signed by two former employees. One of the employees resigned, the other was terminated.

Loparex makes “release liner” products such as nametags with peel-off backings, window films, and roofing underlayment. The formulas involved in these products allegedly are trade secrets. The employees in question had in-depth knowledge of its confidential information and were each subject to one-year non-compete agreements.

The employees denied wrongdoing and counterclaimed for damages, including attorneys’ fees, contending that their ex-employer violated the Indiana Blacklisting Statute, Ind. Code §22-5-3-2, by filing the lawsuit.

The case was filed in U.S. District Court, but because the matter involved a question of Indiana law, that court asked the Indiana Supreme Court to weigh in.

The district court certified three questions to the Indiana Supreme Court, seeking clarification: (1) Does an ex-employer violate the Blacklisting Statute by suing to enforce non-competition agreements signed by former employees? (2) was a century-old decision in Wabash R.R. Co. v. Young still good law? Are attorneys’ fees recoverable as compensatory damages in a suit for violating the Blacklisting Statute?

To make a long story short, the court answered all three questions in the negative.

Bottom line – if you’re an employer in Indiana,  you can sue your employees for violating their noncompetes without fear of being countersued for blacklisting, and you don’t have to worry that if  your employees countersue you anyway, you’ll automatically have to pay their attorney’s fees.

Pharma Rep Overtime Case Heard at U.S. Supreme Court

There’s a lot riding on a case currently before the U.S. Supreme Court concerning the issue of whether sales representatives for pharmaceutical companies qualify for overtime under the nation’s wage and hour statute.

A ruling in the reps’ favor could result in large overtime payments by the pharma companies. But if the companies prevail, they’ll have to deal with disgruntled salespersons who feel they’re being shortchanged when they work long hours.

The legal issue is whether the reps are “outside salespersons” under the Fair Labor Standards Act. If they are, they do not qualify for overtime.

The U.S. Supreme Court heard oral arguments in the case on Monday.

The FLSA requires employees be paid overtime if they work more than 40 hours in a week.

The Labor Department’s view is that the reps are not exempt from overtime, because they do not sell or take orders but instead provide physicians with information about different drugs.

But the pharma company in this case–British based SmithKline Beecham Corp.–argues that the reps are outside sales persons and not merely promoters. They sell specific products to specific doctors offsite from company locations.

You can read more analysis of the issues at stake here.

Expect a ruling by the end of the court’s term in June.